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SPEECH 



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ALBERT GT BBOWN, OF MISSISSIPPI, 



ON 



THE PKESIDENT'S VETO MESSAGE, 



AND 



m DEFENCE OF THE BILL MAKING A GRANT OF LAND TO THE 
SEVERAL STATES FOR THE BENEFIT OF THE 
INDIGENT INSANE. q 



Delivered in the Senate of the United States, Mat 17, 1854. 



WASHINGTON: 

PRINTED BY JOHN T. & LEM. TOWERS, 

1854. 



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SPEECH 

• OF 

ALBERT G. BROWN, OF MISSISSIPPI, 

ON 

THE PRESIDENT'S VETO MESSAGE. 



Delivered in the Senate of the Uuited States May 17, 1854. 



Mr. President*. It is with extreme regret that I utter a word on this 
subject, To me it would be a more grateful task to sustain the views of 
the President than to oppose them, A strict constructionist of the Consti- 
tution myself, it is more pleasant for me to act in harmony with those who 
construe it strictly, than to differ with them, We have rare examples in 
the administration of the Government of a rigid adherence to that instru- 
ment, and any attempt to set us an example excites my admiration. I 
could wish, however, that the President had selected a less worthy object 
than the one before us for a manifestation of his zeal in sustaining the Con- 
stitution in its letter and in its spirit. 

If this were an original question I would be silent. But having voted 
for the bill that has fallen under the Executive veto, in the House and in 
the Senate, I feel called upon in justice to my constituents, and to myself, 
to assign the reasons which justified me in giving these votes. I yield to 
no man in a rigid adherence to the Constitution. 

I have no oration to pronounce in behalf of the indigent insane* These 
children of misfortune are their own most earnest advocates. Immured in 
cells, or shut up in loathsome dungeons, shut out from the light of day and 
from the light of reason, with the hand of God resting heavily upon them, 
their mute appeals to us for help and succor, are more eloquent than any- 
thing that I can say. 

The President has declared, with an earnestness that does him credit, as 
a man and a christian, that he has "been compelled to resist the deep sym- 
pathies of his own heart in favor of the humane purposes sought to be ac- 
, complished^ by this bill. The sentiment will £nd a hearty response in the 
bosom ef every good man, Of all the millions who live under the aegis of 
our Constitution, there is perhaps not one who will not say that the pur- 
poses sought to be accomplished by the bill are humane, benevolent, chris- 
tian, and eminently worthy of all the support which we can give them con- 
sistently with our duties to the Constitution. We have, then, but one 
question before us : Can we pass this bill without violating the Constitu- 
tion I 



M 



To that question I address myself. 

The Constitution says: "The Congress shall have power to dispose off' 
and make all needful rules and regulations respecting the territory or other 
property belonging to the United States." 

That the word territory is used in this connexion as synonymous with 
land, and that land is here treated of purely as property is not questioned, 
I believe, by the President or any one else. 

To dispose of — to dispose of the territory,, to dispose of the land— what 
is meant by that phraseology ? In ordinary parlance, it means to give, to 
sell, to bestow, to convey, and I apprehend that it was used simply to con- 
vey its ordinary meaning. The framers of the Constitution were men not 
only of common sense, but of extraordinary astuteness. They knew the 
force of words, and the meaning of words, and it is a reproach to them to 
say that they employed words with one signification in the Constitution, 
which, in their common every day use, carried with them a different signi- 
fication. 

I have consulted eminent lexicographers as to the true meaning of the 
words " to dispose of," and with these results : 

Johnson. — To dispose: To employ for various purposes; to give; to 
place ; to bestow. 

To dispose of: To give away; to employ to any end; to put into the 

HANDS OE ANOTHER. 

Richardson. — Dispose : To employ for or apply to a particular purpose 
or use, and thus to bestow. 

Todd. — Dispose : To employ to various purposes ; to diffuse ; to give ; 
to place ; to bestow. 

To dispose of: To apply to any purpose ; to transfer to any other pur- 
pose or use ; to put into the hands of another ; to give away by authori- 
ty. 

"Webster. — Dispose : To apply to a particular purpose ; to give ; to be- 
stow, as you have disposed much in public piety. In this sense, "to dispose 
of" is more generally used. 

To dispose of: To give away or transfer by authority. 

Walker. — To dispose of : To apply to any purpose; to put into the 
hands of another; to give away by authority. 

Now, sir, if Congress has the power to dispose of the public lands, and if 
"to dispose of" means as Richardson, Johnson, Walker, Todd, and Web- 
ster, all agree it means, to give, where is the want of power to give these 
lands for the benefit of the indigent insane ? 

The power to give having thus been conferred in express terms by the 
Constitution, there can be no limitation to the use of that power 'other than 
this, that it shall not be used for a purpose inhibited by the Constitution in 
express terms, or by fair implication. 

There is no pretence, that the purpose of this bill is inhibited by the Con- 
stitution in express terms. The inhibition must therefore be supplied by 
implication, if at all. I shall undertake to show that there is nothing in the 
Constitution or outside of the Constitution, which being fairly construed 
supplies any such implication. 

The President has undertaken to show, first, that the Constitution itself, 
not in terms but by fair intendment, prohibits such a gift as that proposed 
in the bill, and, secondly, that the deeds of cession from New York, Vir- 



,t?-2&\N 



ginia, Massachusetts, and North Carolina, in more express terms, prohibits 
it. On both points the President and myself differ. 

The President says the bill proposes to make provision for an eleemo- 
synary purpose within the several States, and that " this presents the ques- 
tion at the threshold as to whether any such act on the part of the Federal 
Government is warranted or sanctioned by the Constitution." The point 
here presented is not that Congress cannot provide for an eleemosynary in- 
stitution, because it is such an institution, but that Congress cannot pro- 
vide for such an institution in the States. I am warranted in saying this, 
because the President clearly admits that it is within the competency of 
Congress to provide for an instituti n of this character in the District of 
Columbia — his language being, " if Congress have power to make provi- 
sion for the indigent insane without the limits of this District, it has the same 
power to provide for the indigent who are not insane, and thus to transfer 
to the Federal Government the charge of all the poor in all the Stales." 

I respectfully submit that the President hns not met the question fairly. 
We propose to give the lands, and instead of meeting us on the question as 
to whether we have the power to make the gift, the President attacks the 
object of the gift, and on the ground that this object located without the range 
of constitutional legislation, to wit, in the States. I grant that Congress has 
no express authority or warrant in the Constitution " to make provision for an 
eleemosynary purpose within the States ;" but has Congress any express war- 
rant or authority to make provision for colleges, schools, and railroads within 
the States ? Clearly not ; and yet I shall show before I get through that the 
President has very distinctly indicated that all these come within the range 
of constitutional legislation. 

I shall presently inquire by what warrant the Congress gives lands to 
schools, colleges, railroads, to build houses, and drain swamps, in the States, 
and shall then endeavor to show that the same Constitution which sanctions 
these grants also sanctions grants to lunatic asylums. 

For the present let me pursue the argument of the President — " It can- 
not be denied," he says, " that if Congress has the power to make provision 
for the indigent insane, &c," "it has the same power to provide for the in- 
digent who are not insane." Granted; but has the President well considered 
the difference between the mere possession of a power and the necessary 
obligation to exercise that power ? Because Congress has the power to do a 
•thing, it by no means follows that Congress must do it. Congress has the 
power to order the building of six or sixty steam frigates, and it has exer- 
cised that power so far as to order six ; it does not follow that it must order 
the building of sixty. 

The President speaks of idiocy, physical diseases, and extreme destitution, 
.and says "if Congress may and ought to provide for any one of these 
objects, it may and ought to provide for them all." This is saying that if 
-Congress has the power to do one thing and does it, then Congress is bound 
to do every* thing else that it has the power to do. Now, I may think that 
•Congress may and ought to declare war against Spain — and if she does it 
I should by no means conclude that she may and ought to declare war 
against England. If Congress has the power to give, it may give to a class 
stricken mysteriously by an inscrutible Providence, without imposing on it- 
self any sort of obligation to give to those who have fallen victims to their 
own bad passions, or to the lazaroni who have been or may be poured upou 
our shores from the jails and pest-houses of the old world. 

The argument of the President, it seems to me, amounts rather to a 



strongly expressed apprehension that the power may be abused than to 
a logical conclusion of its non-existence. The fear that a power may bo 
abused may justify a cautious use of it, but it will not prove that it does- 
not exist. The power to declare war is one of fearful import; it may be 
absurd. Congress may declare war against England ; to-day it would be an 
abuse of power; but it would not prove that the power did not exist, and 
notwithstanding its abuse to-day, it may be rightfully used to-morrow. 

The President tells us he will not discuss the question of power some- 
times claimed under the general welfare clause of the Constitution, because 
he conceives the question of power under that clause to have been well and 
wisely settled. He thinks Congress has the "power to lay and collect taxes> 
duties, imposts, and excises," in order " to pay the debts" — and in order " to 
provide for the common defence and general welfare." In all this I 
quite concur with him — but as no one, to my knowledge,, ever claimed 
authority under this clause of the Constitution to pass this bill, and as the 
Presidents remarks on this point do not seem to me to meet the argument 
as presented by the friends of the bill, I do not clearly perceive the purpose 
for which they were introduced. 

I cannot but think the President gives a wider range to his fears than the- 
facts warrant, when he says : 

"If the several States, rnany of which hare already laid the foundation of munifi- 
cent establishments of local beneficence, and nearly all of which are proceeding to 
establish them, shall be led to suppose, as they will be should this bill become a law,, 
that Congress is to make provision for such objects, the fountains of charity will be 
dried up at home, and the several States, instead of bestowing their own means on 
the social wants of their own people, may themselves, through the strong tempta- 
tion, which appeals to States as to individuals,, become humble suppliants for the 
bounty of the Federal Government, reversing their true relation to this Union " 

I have a better opinion of the States than is here indicated. In my opin- 
ion " the fountains of their charity" are not more likely to be " dried up" 
\>j grants of land for the benefit of the insane, than is their passion for 
learning to be extinguished by similar grants for school purposes — nor is a 
State more likely to become " an humble suppliant for the bounty" of this 
Government, when she receives a small quantity of land for the relief of suf- 
fering humanity, than she is when she receives a larger quantity for internal 
improvements and other purposes. We have seen that grants of land for 
school purposes have not " dried up" the passion for learning in the States, 
but has stimulated it, and caused it to flow in a steadier and a bolder 
stream — and though our tables literally groan under memorials from State 
legislatures, praying for lands in aid of their several railroads and other local 
projects, we have accustomed ourselves to think it all right, and the States 
have remained in blissful ignorance of the fact that they were fast becoming 
"humble suppliants for the bounty of the Federal Government." 

Passing from this part of the message, we come at once to the President's 
comments, on the third section of the 4th article, of the Constitution. It is 
from this section that we derive our authority to pass this bill. "The Con- 
gress shall have power to dispose of and make ail needful rules and regu- 
lations respecting the territory or other property belonging to the United 
States;" such is the language of the instrument, and if its terms are not lim- 
ited by some other language in the same instrument, it seems to me there 
can be no doubt that we may dispose of the land for the benefit of the 
insane. The President has recourse to the sixth article of the Constitution,, 
to wit : that " all debts contracted and engagements entered into before the 
adoption of this Constitution, shall be as valid against the United States' 



tinder this Constitution as under the confederation." This article he thinks 
limits the powers we might otherwise have under the third section of the 
4th article. 

Now, sir, this power to dispose of the public lands is a clear, distinct, 
separate and substantive grant of power, not dependent on anything else, 
and not the incident of any other grant. The sixth section of the Consti- 
tution, in my opinion, imposes no limitation on the grant. The " contract* 
and engagements entered into" before the adoption of the Constitution, and 
which were declared to be " as binding on the United States under the 
Constitution as under the Confederation," referred not to the deeds of ces- 
sion from Virginia, Massachusetts, New York, and North Carolina, but to 
other and very different contracts and obligations. They refer more es- 
pecially to the " contracts and obligations entered into" by the Continental 
Congress for the support of the army of independence ; and as the structure 
of Government was undergoing a change, it was meant to impose on the 
new constitutional government the debts, contracts, and engagements of the 
old Continental Government. Something of this kind was necessary to 
secure the creditors of the Government against loss, and to give assurance 
to the world that the public faith should be preserved. 

I do not, myself, see the limitation which the sixth section imposes on 
the third section of the Constitution. But the President does. He does 
not, it is true, say in terms, that one of these sections limits the other. 
But he introduces arguments to prove it, by asserting, in substance, that the 
" contracts and engagements" referred to in the sixth section of the Consti- 
tution, had special reference to the deeds of cession from Virginia and other 
States to the United States, and the obligations therein imposed, and that a 
strict observance of these obligations is inconsistent with the idea of " dis- 
posing" of the lands by gift. I might, perhaps, successfully protest against 
being required to construe the Constitution by an instrument which, though 
cotemporaneous with it, is not a part of the Constitution, and is not neces- 
sarily connected with it. The Constitution ought to be construed, inter- 
preted and administered by what is written on its face ; and where the writ- 
ing admits of one, and only one, clear and distinct interpretation, that inter- 
pretation ought not to be destroyed or nullified by a resort to extraneous 
matter. 

But, I want to meet the question fully and fairly, and in every one of its 
presentations ; and therefore, I admit, for the sake of the argument, that- 
the President may be light. The deeds from all the States, I believe, are 
substantially the same. The President introduces the one from Virginia, 
and for the reason, I presume, that it meets the point made by him more 
fully than any of the others. It was executed in 1784, and its material pari 
is as follows : 

"That all the lands within the territory of the United States, and not reserved 
for or appropriated to any of the before mentioned purposes, or disposed of in boun- 
ties to the officers and soldiers of the American army, shall be considered a common 
fund for the use and benefit of such of the United States as have become, or shall become^ 
members of the Confederation or Federal alliance of the said States, Virginia inclu- 
ded, according to their usual respective proportions, in the general charge and expen- 
diture, and shall be faithfully and bona fide disposed of for that purpose, and for no 
other use or purpose whatsoever." 

The President, as I understand him, takes the ground that the stipulations 
of this deed are part and parcel of the " contracts and engagements" allu- 
ded to in the sixth section of the Constitution, and that the attempt to give 
ten millions of acres of land to the indigent insane being in violation of 



8 

these stipulations, is consequently in violation of the sixth section of the 
Constitution, and, therefore, void. I think this a proper conception of the 
President's position. I know that I have meant to state it fairly. 

Now, sir, suppose that this deed was actually a part of the Constitution ; 
that instead of having the power to dispose of the lands without limita- 
tion, as I think we have under the Constitution, w r e had only the power to 
use them as a common fund for the use and benefit of such of the States as 
belong to the Union, Virginia included, could we not even then pass this 
bill ? Do we propose to employ this common fund otherwise than for the 
use and benefit of all the States ? The lands are spoken of as a common 
fund in the deed. These lands or common funds to the amount of ten 
millions of acres, we propose to divide among the several States, in a 
compound ratio of geographical area and representation in the House o{ 
Representatives. Now, if we so use them, is not the use for the benefit of 
all the States of the Union, Virginia included. Mark you, the language of 
the deed is, that the land " shall be considered as a common fund " for the 
use and benefit of all the States. When you take a part for the use of 
schools in a few States, another part for the use of railroads in other States, 
and another part for the use of swamp drainage in other States, as you have 
done time and time again, are you employing a common fund for the use 
and benefit of all the States ? Of what use or benefit is a common school 
in Mississippi to the State of New York ? And how is Massachusetts bene- 
fitted by draining a swamp in Arkansas ? If there be a resulting use and 
benefit to the old States, in giving lands to the new States, how much more 
apparent will this use and benefit become, if you give the lands directly to 
the old States themselves. 

To my mind this is the first land bill ever brought forward in the true spirit 
of the deeds of cession. It is the first bill that ever proposed to divide the 
land among the States having in them a common interest, share and share 
alike. The bill, to say the least, embodies an equitable principle. It 
awards a common fund among the parties in interest, and says in plain 
terms to the old States, and to the new, that which we hold for the use and 
benefit of each and every one of you, shall not be employed for the use of 
one to the exclusion of another. 

But admitting this interpretation of the deeds to be correct, what becomes 
of all the lands acquired by conquest and by purchase ? They certainly 
are not under the control of the deeds of cession from Virginia, Massachu- 
setts, New York, the Carolinas, and Georgia. All the territory west of the 
Mississippi river, including Oregon, Washington, Utah, and New Mexico, 
and the unsold lands in Louisiana, Arkansas, Missouri, and other States 
west, was acquired otherwise than by those deeds of cession. Is the power 
of Congress more ample over these lands than over the unsold lands in 
Mississippi, Alabama, and the other States lying within the cessions from 
the old States ? It must be so, or else the whole argument based on these 
deeds falls to the ground. For by no torturing of language can a deed 
from Virginia or Massachusetts be made to cover lands bought from France 
or Spain, or conquered from Mexico. 

I am a new State man, and I am a just man. And I now say to the new 
States, you have no right to take from the common fund for colleges, for 
schools, for railroads, for swamp drainage, and for other special purposes of 
your own, and then say to your older sisters, you shall have no part for 
any purpose of yours. The old States having a common interest in a com- 
mon fund, have said to their younger sisters, take from this fund for col- 



leges, schools, railroads, swamp drainage, and for other purposes, and we 
have taken accordingly. Shall we now say to them it is unconstitutional 
for you to take for any purpose. Can we say so in honesty and in good 
faith? Can we receive for our schools and deny to the old States for 
their asylums ? And if we do, will it not look as if the violation of the Con- 
stitution consisted, not in using the common fund for the particular purpose 
designated in this bill, but rather in its application to the use and benefit of 
the old States? AVho doubts that it is just as constitutional to endow a 
lunatic ayslum in Mississippi as to endow a college or university in that 
State ? Who questions that if Congress may give lands in Illinois to edu- 
cate sane children, it may give lands in the same State to protect insane 
children ? And can it be that Congress may apply " a common fund " held 
for the use and benefit of all the States, to the use and benefit of new States, 
to the exclusion of the old States ? This must be assumed as true, or else 
it follows irresistibly that the lands being the common fund, and it being 
constitutional to give to Mississippi and Illinois, it is equally constitutional to 
give to North Carolina and Virginia. And then again, unless it shall be shown 
that it is unconstitutional to endow a lunatic asylum per se, it will follow 
that if you can give to a college in Alabama from the common fund, you 
may give to an asylum in Delaware from the same fund. 

I think it hardly necessary to dwell upon the argument of the President, 
based on the pledge of the Government to devote these lands to the payment 
of the public debt. With an overflowing treasury, and the Government con- 
stantly seeking sources of expenditure, it will hardly strike the bondholders 
or any one else, that there is a violation of faith in disposing of these lands 
in the mode proposed. If any of the bondholders feel uneasy about the se- 
curities, they have only to present their bonds at the treasury and receive 
their money. 

The same argument employed by the President now, was employed by 
others when the bounty land bill was under consideration, and with greater 
force than now, for at that time the public debt was more than twice its 
present size, and we had an empty treasury. It did not avail then, and I 
know of no reason why it should do so now. 

The President respectfully submits, that, in a constitutional point of view, 
it is wholly immaterial whether the appropriation be in money or in land. 
I think differently. The Congress has no power to dispose of the money 
but for purposes named in the Constitution. It has the power " to dispose 
of" the land for purposes that are not named in the Constitution. It fol- 
lows that Congress holds its authority over the money by one tenure, and 
its authority over the land by another, and so I apprehend it has always 
been considered. Jefferson, Madison, Monroe, Jackson, and Polk, have all 
signed bills giving lands to roads, canals, schools, colleges, and other ob- 
jects that were purely local in their character, and does any one suppose 
that either of them would have approved bills appropriating money to these 
objects. 

The purposes named in the Constitution for which money may be used 
are, to pay the debts and to provide for the common defence and general 
welfare. The President's reading of the money clause is correct. He 
reads it thus : " The Congress shall have the power to lay and collect taxes, 
duties, imposts, and excises, in order to pay the debts, and in order to pro- 
vide for the common defence and general welfare." Congress does not pro- 
vide for the general welfare when it takes charge of a local interest, whether 
it be a road, a school, or an asylum. Objects that are general and not 



10 

local may alone receive the patronage of the Government under the money 
clause. 

The trainers of the Constitution clearly intended that the national ex- 
chequer should be supplied by taxes, duties, imposts, and excises, and as no 
provision was made for raising money from the sale of lands, and no pur- 
pose designated to which the money, when raised from such sales, should 
be applied, it may be well questioned whether it was ever contemplated that 
the lands should be sold. I know that the deeds of cession from Virginia 
and other States point to objects for which the money may be applied, but I 
speak now of the Constitution and not of the deeds of cession. 

When, however, the lands are sold and the money is paid into the treas- 
ury, it becomes part and parcel of one treasury, and can only be used as 
money raised from taxes, duties, imposts, and excises may be used, in order 
to pay the debts, and in order to provide for the common defence and gen- 
eral welfare. Before it is sold, while it is yet land, it may be disposed of 
not alone to pay the debts, and not alone to provide for the common defence 
and general welfare — there are no such words in the land clause of the 
Constitution — but it may be disposed of for any purpose not inhibited by the 
Constitution. It is one thing to dispose of the money in order to pay the 
debts of the Government, and it is another thing simply to dispose of the 
public lands. I respectfully submit, therefore, that the President is mistaken 
in supposing that Congress has the same power to appropriate money that 
it has to appropriate land. 

Indeed, the President admits, in the very next paragraph of the message, 
that there is some distinction between property in land and property in 
money. Speaking of the public domain he says : 

"As property, it is distinguished from actual money chiefiy in this respect: that 
its profitable management sometimes requires that portions of it be appropriated 
to local objects, in the States wherein it may happen to lie, as would be by any 
prudent proprietor to enhance the sale-value of his private domain. All such grants 
of land are, in fact, a disposal of it for value received." 

It is here distinctly avowed that a portion of the land may be so applied 
as to increase the value of the remainder. In other words that a section of 
land may be given to a railroad, if the gift enhances the value of the ad- 
joining section. Now, if there is no difference between appropriating land 
and appropriating money, and you may apply a thousand acres of land to a 
railroad because you thereby double the value of another thousand acres, I 
respectfully inquire why we may not apply a thousand dollars in money, 
if the effect should be to render another thousand or the same thousand of 
double value. Recollect you have the power, according to the message, to 
give the lands only, because the gift increases the value of other lands, and 
the President sees no difference between giving lands and giving money. It 
follows, therefore, if giving money will have the same effect in increasing the 
value of money that giving 7 and will have in increasing the value of land, 
you may give the one or the other as you please. It thus becomes a sim- 
ple question as to whether you will invest land or money. 

With the same power to appropriate money as land, the President, I dare 
say, would not approve a bill appropriating money to construct a railroad in 
a State, though that road might make all the land within six miles of it of 
double value, and yet he would approve a bill appropriating one-half the 
land to the same road, simply because, the road being constructed, the other 
half is double in value. By giving money and building the road you get 
-double price for all the land and have the road into the bargain. By giv- 



11 

ing land to a company you only get double price for half the land and liavo 
no road. The power to give the one being equal to the power to give the 
other, it would seem best to give the money. 

It appears to me, Mr. President, that we are likely to be involved in a 
labyrinth of difficulty and perplexity, for the simple reason that we have 
neglected to observe properly the distinction which the Constitution itself 
makes in our powers over the land and over money. The one we may dis- 
pose of for purposes which are not named ; the other we may dispose of 
for purposes which are named, to wit, to pay the debts and provide for the 
common defence and general welfare. 

The President, after speaking approvingly of the land grants heretofore 
made to the new States, (and for which I thank him very cordially,) adds, 
" all such grants are in fact a disposal of it for value received." This brings 
me to the consideration of a material point in this argument. Grants have 
been made, as I have said, more than once, to roads, canals, colleges, schools, 
and other objects in the New States ? All such grants, we are told, have 
been for value received. Value received from whom ? Not from the gran- 
tees ? To them the grant was a naked, unqualified gift ; they paid nothing, 
did not promise to pay anything, and did not guarantee that anybody else 
should pay anything. They were gifts in the broadest, fullest, and most 
comprehensive sense of the term. They were lands conveyed in fee simple 
to parties who paid nothing. The consideration, the value, if any was ever 
received, came from other parties than those to whom you gave the land. 
Now, we either had the power to make these gifts, or we had not. If it 
exists in the Constitution, we have it independent of any consequences or 
results that may follow its exercise. The fact that one section of land is 
doubled in value, by giving away another section, may be a very good ar- 
gument to justify the use of an actual existing power. But, I submit that 
it does not and cannot by possibility supply a power that does not already 
exist. If I have no power to give one section, it is useless to tell me how 
much the gift will enhance the value of the next section. My answer sim- 
ply is, I have no power to give at all. If I have the power, then it may 
be very well to urge as an argument, to justify the use of it, that if I give 
one section I make the next one worth as much as both. 

If Congress has the power to give lands to railroad companies, (and I 
think it has,) it may exercise the power at discretion. But, if it has not 
the power, it is difficult to perceive how it is obtained by simply charging 
a bona fide purchaser double price for the lands you sell him. To give as 
a reason for charging a settler two prices for his home, that you have given 
lands to a railroad company is bad enough in all conscience ; but to assert 
that Congress obtains a constitutional right to give lands to railroad com- 
panies, by the simple process of charging the squatters two prices for their 
homes, is hardly respectful to the human understanding. If we have the 
power to give, it exists as an independent substantive proposition ; and if 
we have not the power, it is not acquired by any argument however plausi- 
ble, or any legislative expedient however cunningly devised. 

The President regards the bill as appropriating ten millions of acres of 
land to an eleemosynary purpose, within the limits of the States, and he ques- 
tions the warrant of the Congress to make such an appropriation ; not be- 
cause it is made for an eleemosynary purpose, as I understand him, but be- 
cause it is made for such a purpose within the limits of the States. This 
is evident, as I have before said, from the fact that in the very next sentence 
he admits that, within the District of Columbia we may make appropria- 
tions for eleemosynary purposes. 



12 

The argument, then, is not that you cannot make an appropriation for 
the benefit of insane asylums because they are asylums, but because they 
are State institutions. Now, let us test the soundness of this logic, by what 
appears in the message elsewhere. The President says, on page six of the 
printed paper, that the profitable management of land may sometimes re- 
quire us' as prudent proprietors to appropriate a part of it to local objects in 
the States where it lies. That the mind of the President in penning this 
sentence was directed to the land grants heretofore made for railroad, college, 
school and swamp purposes in the States, there can be no question. Has 
Congress any more right to patronize by a gift or grant, a railroad, a school, 
or college, or to drain a swamp, in a State, than it has to patronize by a 
gift or grant, a lunatic asylum in a State ? What is the difference between 
patronizing an eleemosynary institution in a State, and a common school or 
college in a State, One is purely local, and so is the other, and one is no 
more specified or provided for in the Constitution than the other. If Con- 
gress may patronize by a gift an eleemosynary institution in this District, as 
the President admits, it may do the same thing in a State, unless there is 
something in the relations between the States and the Federal Government 
that forbids it. And I submit, with diffidence and respect, that if there be 
anything in that relation which forbids us to patronize an eleemosynary in- 
stitution in the States, there must be that, also, which forbids our patron- 
izing a college in a State. If it be said that the college is exclusively un- 
der the control of the State, I reply that the eleemosynary institution is also 
exclusively under the control of the State. 

If Congress may give lands to railroads, schools, colleges, and other 
purely State institutions, there can be nothing in the argument that lands 
cannot be given to asylums or other institutions, simply because they are 
within the limits of the States. 

The President lays great stress on the assumed feet that we are only au- 
thorized to dispose of the lands as a prudent proprietor would dispose of 
his own estate. Very well ; let us examine the soundness of this position. 
I have never asserted, myself, that the United States was the proprietor of 
the land, I have only mantained that she was the trustee of the States. If 
she is the proprietor, it needs no argument, it seems to me, to prove that 
she may give, or sell, or lease, or abandon as she pleases. But if she be a 
trustee, then I grant that she must administer the estate as a prudent pro- 
prietor would administer his own property. 

We have seen in the past that lands have been given to various purposes, 
and the President gives us plainly to understand that -as a prudent proprie- 
tor he would approve of the gifts, and say that Congress had the power to 
make them. Now, suppose that the President was the prudent proprietor 
of a million of acres of land in Wisconsin, and that he had appointed my 
friend, the Senator from that State, (Mr. Walker,) his trustee, with power 
to dispose of the lands as a prudent proprietor would dispose of his own 
estate. The Senator sells a part at auction and some at private sale, and 
the President approves his acts, saying, "that was prudent; you had the 
power to do that." He gives some to a railroad, and the President ap- 
proves that ; he gives some to a college, some to common schools, some to 
build a court house, and some to drain swamps ; the President looks over 
the whole, and says : " this is as a prudent proprietor would have done 
with his own estate. You had the power to do all this and I approve it." 
Then the Senator gives a little to an insane asylum ; the President says : 
" I must resist the deep sympathies of my heart in behalf of the humane 



13 

purposes of this gift. But it is not as a prudent proprietor would "nave 
managed his own estate ; I disapprove it." Now the question is, could 
he consistently say that. When he conferred the power to make the first 
grants, he conferred the power to make the last, and when he approved of 
its exercise in the first cases he necessarily commits himself to an approval 
in the last. He may disapprove if he chooses, but not on the ground of 
power. 

Suppose that the Constitution, instead of giving Congress the power 
simply to dispose of the territory, had said that Congress may dispose of 
the territory as a prudent proprietor would dispose of his own estate, who 
in that case would be the judge of what was a prudent disposition ? Con- 
gress, unquestionably. I do not mean to say that the President could not, 
in such a case, exercise the veto ; but I do say that he could not put it on 
a question of power. He would be compelled to put it on a question of 
expediency. He could not say that Congress had no right to give away the 
lands, for it often happens that a prudent proprietor does give away his 
owu lands. He might say that giving it to the indigent insane is not a pru- 
dent disposition of it, and veto for that reason. But this, I apprehend, 
would raise a question of expediency, and not a question of constitutional 
authority. Congress has power to levy taxes. It may levy excessive taxes. 
But there is not a court in Christendom that would declare the act uncon- 
stitutional on that account, and why? because the abuse of power does not 
effect the question of its existence. I fancy, therefore, that the President, 
to say the least, has placed the veto on the wrong ground. Instead of 
denying to Congress the constitutional right to pass this bill, he ought to 
have assumed that its passage was an abuse of power. How far the Presi- 
dent would be justified in interposing his judgment against the judgment 
of Congress on a mere point of expediency, is altogether another question. 
He has the power to do it if he chooses. 

The President, in speaking of certain grants, heretofore made, says : " all 
such grants of land are in fact a disposal of it for value received, but they af- 
ford no precedent or constitutional reason for giving away the public lands.'* 
I admit that giving to a school does not oblige us the give to an. asylum. 
Bu tl must insist that the same constitutional reason that would justify us in 
in giving to one would justify us in giving to the other. And I think, 
moreover, that the President is mistaken in assuming that a giving to one 
affords no precedent for giving to the other. If we have the same right 
to give to one that we have to the other, then giving to the one does afford 
a precedent for giving to the other. 

The President assumes that, in disposing of the lands by grants to various 
objects, we have heretofore enhanced the value of the remaining land. I 
have already shown that this enhancing the value of one parcel of land can- 
not amplify our constitutional powers over another parcel. But suppose it 
could, is it true in point of fact that these grants have always enhanced the 
yalue of the remaining lands ? When Congress gave two townships of land 
to Mississippi, and many others to the other new States, to endow colleges 
or universities, what lands were increased in value thereby? — none within 
my knowledge. It may be that the existence of colleges and universities 
in the States encourage settlements, and that thereby a chance is held out 
that the lands will sell at a better price. And if this be the argument, I 
reply that the existence of an asylum for the insane is just as likely to in- 
duce settlements, and thus increase the value of the lands, as is the existence 
of a college to do the same thing, 



14 

1 have thus far omitted to speak of the bounty land grants to soldiers in 
connexion with this subject. Regarding that act as depending for its consti- 
tutionality on the same clause of the Constitution that justifies this, and 
as being in all respects more like this than any other, I have chosen to con* 
sider it separately. The bounties to soldiers were, and are, in every legal 
sense, gratuities, naked gifts. The soldiers entered the army on a contract, 
to perform certain specified services for a specific sum of money. They 
have performed the services and received tfyeir pay, and most of them have 
been forty years out of the army. They had been paid off and discharged 
thirty, forty, and fifty years ago. The Government owed them nothing ; 
and yet Congress gave them each a tract of land forty, eighty, or one hun- 
dred and sixty acres. Was this done to increase the value of other lands ? 
Was this justified on the ground of prudent proprietorship ? Was this for 
the use and benefit of all the States ? No, sir, no. It was done as an act 
of gratitude to the brave men \kdio fought our battles. It was justified on 
the ground that we could dispose of the public lands as we pleased, and it 
was for the use and benefit of/the old soldiers, and for no one else. If we 
could give fifty millions of acres on the score of gratitude, why may we not 
give ten millions on the score of charity. The grant to the soldiers met my 
warm approval and had my cordial support. It was an act of justice, not 
of legal obligation. The act before us had my approval and support also* 
It, too, is one of justice, not to individuals, but to States. I defend its con- 
stitutionality on the same ground that I defended the first act, and its jus- 
tice on the further ground, that it divides the land equally among the parties 
having a common interest, and for the praiseworthy purpose of protecting 
those who are unable to protect themselves. 

I here leave the message, and recur for a moment to the history of this bill 
in its passage through the two houses of Congress. It has twice passed the 
House, and twice the Senate. It first passed the Senate, February 12, 1851, 
by a vote of 36 yeas to 16 nays, and was sent to the House, where it was 
defeated by the rigid enforcement of the rules. Once the rules were suspended, 
yeas 105, nays 50, more than two-thirds, but the House proceeded to other 
business, and again, on a motion to suspend that rule, so as to allow the 
bill to pass, the yeas were 108, and the nays 70, It will thus be seen that 
in 1851 there was not only a majority of more than two to one in the Sen- 
ate in favor of the bill, but a majority of about two to one in the House 
also. In 1852 the bill was again before the House, and passed by a vote of 
98 yeas to 54 nays, almost two to one. This session it passed the Senate 
again, yeas 25, nays, 12, and was sent to the House and there passed, yeas 
81, nays 53. It will thus be seen that, before the Senate and before the 
House, both being democratic by large majorities, this bill has uniformly 
commanded two-thirds of the votes in one house, and nearly two-thirds in 
the other. 

It so happened that the bill has not passed both Houses at the same 
session, or during the same Congress, until now, and, therefore, it was never 
before sent to the President for his approval. 

Among the democrats who have voted on this bill at one time 5 or at 
another, I find the names of Borland, of Arkansas ; Downs, of Louisiana ; 
Norris, of New Hampshire; Rusk, of Texas ; Shields, of Illinois; Soule, of 
Louisiana ; Sturgeon, of Pennsylvania, and others of the Senate ; and in the 
House, Bissell, of Illinois ; Cobb, of Alabama ; Gilmore, of Pennsylvania ; 
Ingersoll, of Connecticut ; Peaslee, of New Hampshire ; Polk, of Tennessee ; 
Churchwell, of Tennessee ; Dawson, of Pennsylvania ; Florence, of Penn- 






15 

sylvania ; Seymour, of Connecticut ; Smith, of Alabama ; Harris, of Ala- 
bama ; Beale, of Virginia ; and many others. I mention these things to show 
that if there was error in passing this bill, it was an error very common among 
democrats. Nor can it be said that the constitutional question was not 
raised. It was raised in both houses, and as fully discussed as Senators and 
Representatives chose to discuss it. I speak on this subject after a careful 
inspection of the record. Mr. Borland defended the constitutionality of the 
bill in the Senate, and he has been sent abroad. Messrs. Soule, Peaslee, 
and others of its friends, have 'received the highest marks of the President's 
consideration and confidence. 

The President refers to two acts heretofore passed by Congress, which he 
admits furnishes precedents for the passage of this bill. One of these is an 
act passed March 3, 1819, granting a township of land to the deaf and dumo, 
in Connecticut, and the other is an act passed April 5, 1826, making a like 
grant to the Kentucky asylum for the education of the same unfortunate class. 
It is worthy of remark that the lands thus granted w r ere necessarily located 
outside of the States of Kentucky and Connecticut. And were in this, as 
in all other respects, granted, just as w T e propose to grant these lands, and 
for an object very similar to this, not, I think, so praiseworthy. 

The President admits that these are precedents, but adds, they should 
" serve rather as a warning than as an inducement to tread in the same 
path." I entertain the highest respect for the opinions of President Pierce ; 
but he will excuse me if I say that precedents set by such men as James Mon- 
roe, John C. Calhoun, Wm. H. Crawford, James K. Polk, James Buchanan, 
Wra. R. King, Edward Livingston, Levi Woodbury, Geo. Mcduffie, and others 
do not serve as warnings to me, unless it Jbe the warning that the beacon gives 
to the mariner. Those great men, were bright and shining lights, their ex- 
ample has illumined the path we are now treading. Mr. Monroe was Pre- 
sident, and approved the act of 1819. Mr. Calhoun and Mr. Crawford 
were members of his Cabinet, and all the others, as Senators or Representa- 
tives, voted for one or the other of the bills spoken of by the President. 

If, in following the lead of Democratic Presidents, Democratic Secre- 
taries, Ambassadors, and Senators, who have attained to the highest honors 
in the Republic, and enjoyed the highest places in the confidence of the 
people, I have been led into error, I hope my error will find an easy par- 
don at the hands of my constituents. 

I have now, Mr. President, performed an unpleasant duty. It would 
have given me great pleasure to have found my vote sustained by the Pre- 
sident, but I could neither abandon the vote I had given, nor the convic- 
tions which justified me in giving it, because the President refused to sus- 
tain what I had done. I have felt called upon to defend my course. This 
I have done, how perfectly, is left to time and the public judgment to de- 
cide. It has been my studied purpose to avoid everything that by possibility 
could be construed into an attack upon the conduct of the President. If 
he is right, the Constitution has been happily saved from violation. If he 
s wrong time will correct his error. But whether right or wrong, I have 
not a word to say against the purity of his motives. He had his convic- 
tions, and he has acted on them, and I am not the man to insinuate that 
he has been moved thereto by any other than the highest considerations of 
duty to the country, and devotion to the Constitution, 



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